A close-up look at NYC education policy, politics,and the people who have been, are now, or will be affected by acts of corruption and fraud. ATR CONNECT assists individuals who suddenly find themselves in the ATR ("Absent Teacher Reserve") pool and are the "new" rubber roomers, and re-assigned. The terms "rubber room" and "ATR" mean that you or any person has been targeted for removal from your job. A "Rubber Room" is not a place, but a process.

I. INTRODUCTION-MORALITY: AN AGE OLD CONCEPT BEING CHALLENGED BY NEW APPROACHES TO EDUCATION

The old saying that teachers should practice what they preach is tested anew in today's classroom. Few school-related topics are hotter these days than "character education," a movement to teach students positive values! Recent polls indicated registered voters strongly support the idea that schools should share the responsibility with parents in teaching children moral principles.2 This growing demand for character education was evident in the recent 2000 presidential debates, and is now at the forefront of President George W. Bush's education agenda. "We want our schools to care about the character of our children. I am talking about communicating the values we share, in all our diversity, such as respect, responsibility, self-restraint, family commitment, civic duty, fairness, and compassion-the moral landmarks that guide a successful life."

As expectations for students to be more moral continue to rise, there may be an increasing desire to evaluate the character of those who teach it. School districts displeased with teachers' non-conventional acts or habits, such as their sexual orientation or choice of living arrangements, have dismissed them, labeling their conduct "immoral" despite the fact the behavior occurred away from school. Few would dispute a school district's right to police teacherbehavior or language on school grounds,' but should schools demand teachers live their lives a certain way even while away from school.

Many questions arise when one approaches the subject of "morality," or the absence of "morality," or rather, "immorality." What is it? What conduct does it encompass? Is a teacher's sexual orientation a moral question? Should a school board be able to dictate what a teacher does in his or her spare time, or with whom he or she associates after the school house doors have closed? If the law permits inquiry into a teacher's morality, what limits, if any, should be imposed? Should the definition be different from community to community as toleration levels vary? This article will examine the competing interests of school districts in employing "moral" teachers and teachers' interests in privacy and lives detached from government control. This article will also discuss the constitutional shortcomings of current laws and new approaches being explored to address these concerns. Finally, this article will suggest that, as school districts' desire to inquire into a teacher's off-duty conduct increases, both school authorities and teachers should be aware that theirpowerto inquire is not unlimited.

II. IDENTIFYING THE CURRENT BAR: WHAT TYPE OF CONDUCT IS PROHIBITED?

Long before the current movement towards character education, teachers were terminated for flaws in their character. While state codes vary as to the specific grounds for dismissal, teachers have been terminated, among other things, for "incompetency,"5 "insubordination,"6 "neglect of duty,"7 "sufficient cause,"8 "conduct unbecoming,"9 and "immorality."10 Typically, these words are broad and left undefined. For example, North Carolina provides that "No teacher shall be dismissed or demoted ... except ... for immorality."" Most of these broad provisions do not present a problem because of their inherent focus on conduct surrounding theteacher'sjobperformance. "Incompetency," neglect of duty," and "insubordination," by their very terms, merely state the principle that a teacher may be terminated for deficiencies in job performance. However, it is not as clear what conduct is required in order to terminate a teacher based on "immorality." This term has given courts, as well as teachers, difficulty in ascertaining exactly what conduct is prohibited.

Few jurisdictions expound on what warrants termination for being "immoral." As one court states,

Immorality is an imprecise word which means different things to different people. In essence, it connotes conduct not in conformity with accepted principles of right and wrong behavior. It is contrary to the moral code of the community; wicked; especially, not in conformity with the acceptable standards of proper sexual behavior.

Another court has written, tautologically: "Immoral conduct contemplates behavior sufficiently contrary to justice, honesty, modesty, or good morals." To religious groups which draw their accepted principles from sacred texts such as the Bible, immorality conjures up behaviors such as adultery, homosexuality, and debauchery. "In the opinion of many people, laziness, gluttony, vanity, selfishness, avarice, and cowardice constitute immoral conduct." Yet, most state codes do not even have what guidance is given by these unhelpful interpretations." As a result, the imperfect human teacher holds his breath waiting to see whether other imperfect humans will determine his conduct has become "immoral."

A. Constitutional Challenges

Teachers have challenged these statutes for being unconstitutionally vague. Although teachers have made several arguments in support of the void-for-- vagueness theory, few have been successful. The majority of courts have upheld these statutes "as applied" to the individual teacher by reading a narrowing construction, such as a "fitness to teach" requirement into the definition of "immorality."

One of the principal arguments made by teachers is that vague laws are offensive to our notions of due process, fair play, and substantial justice. "Our judicial system has always insisted that laws give persons of ordinary intelligence an opportunity to know what conduct is prohibited so as to avoid that type of conduct."" This argument seems fair in that it is difficult to subject someone to punishment when that person had no way of knowing that his conduct would bring about punishment. In Alford v. Ingram, the court, in construing a statute permitting termination for "immoral" conduct, stated that "while these words may have had certain concrete meanings in simpler times, this court has serious doubts as to whether these terms currently provide fair warning of proscribed conduct."

Perhaps this is true. The notion of immorality may have been more concrete in times past, serving fair notice of proscribed conduct. Modern issues, like HIV infection and homosexuality, were virtually unknown, or at least not discussed, in generations past. Perhaps the Ingram court was merely recognizing that times have changed, and that what was "immoral" yesterday may not be "immoral" today. Or, by its decision to uphold the statute, the court may have been suggesting that there may yet be a realm of "universal core" conduct that could be fairly defined as "immoral."

The United States Supreme Court has also recognized that the root of the vagueness problem is a rough idea of fairness, but that there are "practical difficulties in drawing... statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited."" Thus, the Court has tended to tip the scales in favor of those who have made the laws, as opposed to the teachers.

Teachers also point out that these termination statutes are unfair in that the definition of immorality often depends on what the school board thinks it means. This, in turn, could result in "arbitrary and discriminatory enforcement of the statute which could be applied so broadly that every teacher in the state could be subject to discipline."" In Burton v. Cascade School District Union High School No. 5, a teacher was dismissed on the basis of "immorality" forbeing homosexual. The court struck down this statute because it did not define what conduct constituted "immorality." Statutes this broad make those charged with enforcement the "arbiters of morality for the entire community," and, in doing so, "subject[] the livelihood of every teacher in the state to the irrationality and irregularity of its judgments."

Although the Burton decision is not widely followed because its approach was to strike down the statute instead of applying a narrowing construction its wisdom is evident. The court recognized that broad statutes require those who enforce them to read an unstated "community standard" into the the statute. For example, two courts may interpret "immorality" as encompassing different conduct: a liberal, tolerant community conceivably might not find anything wrong with a teacher who is homosexual; yet a rural town in the Bible belt may have grave difficulty in accepting this teacher in its schools.

It seems reasonable to conclude that the current application of the "immorality" standard depends on what the community applying the statute thinks it means. In addition, according to most courts, the immoral conduct warranting dismissal must be conduct that would adversely affect the teacher's job performance.

III. MEETING THE CURRENT BAR: TERMINATION FOR CONDUCT RELATED TO JOB PERFORMANCE-- CONSISTENT WITH SOCIETY'S INTEREST IN PROTECTING THE SCHOOL COMMUNITY

A. Society's Interest: Protecting the School Community

It is difficult to disagree with the proposition that the school board has a significant interest in protecting the school community from anything that would distract it from fulfilling its purpose of educating each child that attends its schools. This interest encompasses not only employing highly qualified teachers to teach, but also fostering an environment that promotes effective learning. Since school districts are beginning to implement character-based curriculums for students, teachers naturally will have to be trained to implement these programs. Regardless of the nature of the program-whether it be one of comprehensive morality" or simpler matters such as teaching mutual respect"-the school district, both as employer and educator, has an important interest in its employees' conduct that potentially could interfere with that mission.

The law recognizes that a teacher's role is unique in our society. "Teaching is not like driving rivets. It is not merely the rote, mechanical conveyance of factual information from one mind to another. Teaching is the shaping of young minds, the cultivation of a precious resource."" Because of this unique role, "teachers are intended by parents, citizenry, and lawmakers alike to serve as good examples for their young charges."

Many people regard a teacher as an "exemplar, whose words and actions are likely to be followed by the students coming under his care and protection." A teacher dismissed for immorality seemingly has an uphill battle if the act would affect those whom he teaches. For example, many courts have found that a teacher's private bad act was not sufficient to justify dismissal based on "immorality" where there were no students involved," or where the act occurred in the privacy of the teacher's home." However, a Chicago teacher's private possession of drugs was an immoral act in light of his being assigned to teach children involved with gangs or who had otherwise been in trouble with the authorities.35 Because of the influence the teacher had on those particular students, and because he was hired to be a role model for them, an act of this sort need not have been tolerated by the school district.

It is perhaps because teachers play this important role of character model that their conduct has been subjected to greater scrutiny." "It is undisputed that a child is under a teacher's care approximately seven hours a day, five days a week. Nearly half of a child's waking existence is under that of a teacher hired by local school boards."" Thus, it seems reasonable that a teacher's character and conduct should be expected to be above that of an average citizen not working in "so sensitive a relationship as that of a teacher to pupil."

Despite the fact that teachers may be held to a higher standard due to their relationship with students, should that expectation nullify a teacher's interest in living a private life away from school? In Sullivan v. Meade County Independent School District No. 101, a teacher's act of living with her boyfriend in a trailer park was sufficiently "immoral," according to the court." The court said that the live-in arrangement would have a grave impact on her ability to be a role model for her students." But should it have? Being a role model perhaps is a valid interest during school hours, for which the teacher is paid. But should this interest extend beyond that time? When the teacher signed her contract, did she bargain for an around-the-clock role model job with only eight-to-five pay?

B. A Reasonable Expectation-Getting Fired for Something Work-Related

In our society today, it seems reasonable that employees should not be surprised to be fired for failure to perform their duties at work. The bank teller who consistently gives his window customers an extra $100 should expect to hear from the boss that his days at the bank are numbered. The CEO of a major corporation should have no doubts that his impending replacement is because of unrealized financial expectations ofthecompany, not because he failed to make his mortgage payment last month. A teacher, as well, should realize that taking a four hour coffee break during school hours will lead to the numbering of her days as a teacher. Thus, it is reasonable to assume that the average employee would not be surprised for being terminated for inadequately performing his job. However, it also seems reasonable to surmise that the bank teller, the CEO, and the teacher would be shocked if they came to workMonday morning only to find that they had been terminated for telling lies to preachers on Sunday.

Courts have generally upheld teacher termination cases based on work-related conduct. However, dismissing a teacher on the basis of "immorality" presents difficulty, both in that "immorality" is hard to define, and because "immoral" conduct can occur both inside and outside of the school setting. "Immorality" generally refers to some specific act. While there are exceptions to the rule, an "immoral" teacher will lead an "immoral" lifestyle and may not necessarily behave differently during school hours. However, the opposite can also be true. A person that society would consider "moral," as evidenced by his actions most of the time, may act in an "immoral" way on occasion. Because of this dilemma, as the cases demonstrate, school authorities generally do not focus on an immoral lifestyle but rather are concerned with a specific, unacceptable act. Thus, the conduct school authorities are concerned with most is conduct that would adversely affect a teacher's ability to perform his or her job.

Whether or not the conduct occurs away from school, few would contest the legitimacy of terminating a teacher for immorality based on improper conduct involving students. In fact, with respect to teachers, this might be the type of conduct which could be defined as "universal core" conduct. The many decisions finding a teacher's conduct with students to be "immoral" suggest the courts may have identified a per se standard of immorality that is applied regardless of the beliefs of the community applying the statute. However, a few illustrative examples of teachers displaying a momentary lapse of control indicate that "immorality" may simply be the most convenient category of conduct available to the authorities.

It should be no surprise that attempted sexual encounters with students have not been treated lightly by the courts. In Board of Trustees of the Compton Junior College District of Los Angeles County v. Stubblefield a court had no trouble concluding that a teacher had engaged in "immoral" conduct when the teacher was caught without his pants.' The court held the teacher was properly terminated when he was found in a "state of undress" with a female student in a parked car outside the school. The court stated, "[i]t would seem that, at a minimum, responsible conduct ... excludes meretricious relationships with a teacher's students."' Similarly, an Alaska court upheld the termination of a teacher when the school district discovered that the teacher, had engaged in a sexual relationship with a fifteen year-old student while working previously in another school district.

Aside from sexual encounters, teachers have also been terminated for dishonest acts involving students. An Ohio court, for example, held that the conduct of a teacher who instructed a student wrestler to misrepresent his status by weighing in for an older student was sufficient grounds of "immorality" warranting dismissal.

There are numerous accounts of teachers behaving inappropriately with students. An otherwise innocent school-sponsored field trip with students resulted in a Colorado teacher losing his job in Weissman v. Board of Education of Jefferson City School District No. R-J. Despite the teacher's characterization of his actions as "good natured horseplay," the court found that his touching and tickling female students was sufficiently "immoral" to justify termination." In Dickson v. Aaron, a court found that a teacher was properly dismissed for "immoral" conduct when the teacher, while chaperoning a student field trip, ordered a pitcher of beer at a restaurant and drank it in front of the students.

Even inviting students to social functions outside of school or engaging in inappropriate conversations with them while in school can constitute "immoral" conduct. In Gardner v. Commission on Professional Competence, a court upheld a teacher's termination for inviting a fifteen year-old student to lunch and an evening date and stating at least five times that one of his female students had a "nice ass."" Similarly, courts have upheld decisions to terminate a teacher where the teacher was caught smoking marijuana with students. As these cases illustrate, where society's and school authorities' interests are the highest-at school or involving students-courts will not hesitate to uphold a teacher's termination for immorality. Such conduct interferes with the school district's interest in protecting the school community.

A. Teachers' Interests: Various Protections Afforded by the Constitution

While teachers recognize that a school district may have an interest in protecting the school community, most teachers do not believe this interest should extend into their private lives. Teachers are naturally reluctant to grant school authorities an unlimited license to police their private conduct that occurs away from school, does not involve students, or has nothing to do with being a school teacher. In these situations, teachers have raised claims based on guarantees afforded by the Constitution, such as the right to privacy, freedom of speech, and freedom of association.

For example, in Lile v. Hancock Place School District, a teacher argued that his private conduct was beyond the reach or concern of authorities in determining "immoral" conduct that could be used to dismiss him." In Lile, the teacher was charged with sexual abuse of two children in the custody of the woman with whom he was living. Although the sexual abuse charges against the teacher were ultimately dropped, the court seemed to uphold the immorality-based termination because the alleged victims were the same age as the teacher's students. Also, even though the "immoral" act occurred away from school, the court said that certain acts of the teacher that had become known to the public (such as walking around the house in the nude and taking baths with the children with whom he lived) could have an adverse effect on his relationship with students." In refusing to extend a right of privacy for sexual acts that occurred in the teacher's home, the court observed that the United States Supreme Court "has not extended the right of privacy to embrace any and all activities that occur in the home, or to embrace the individual's interest in living a particular lifestyle.'

Nevertheless, school authorities should not assume they have unlimited oversight of their employee's private affairs simply because the right of privacy is not absolute. Privacy protected under the Constitution requires a balancing between the employee's interest in maintaining a sense of personal autonomy,and an employer's interest in running an effective enterprise." Generally, the courts look to see if the employee had a reasonable expectation of privacy, and if so, whether the employer's intrusions were unreasonable." Private employers have been held liable for intrusions which pry into an employee's personal space and dignity. For example, a store employee accused by a customer of stealing brought successful claims of outrage and invasion of privacy against her employer, who asked her to take off her clothes in order to prove she had not taken any of the allegedly stolen items.

It seems only reasonable that a teacher's right to privacy, especially while away from school, should be similarly protected. Society is willing to protect a teacher's privacy with respect to her personnel files and is willing to pass laws which forbid authorities from monitoring personal phone calls made from the workplace"-arguably at a place where she should reasonably expect less protection of her interests. Should we not expect that society would be more protective of a teacher's privacy at home? If so, the teacher would seem to have a more reasonable expectation of privacy in conduct that occurs away from the workplace.

In addition to privacy interests, teachers have associational rights protected under the First Amendment to the Constitution. Teachers have brought freedom of association claims against school districts that have arguably overstepped the line into a teacher's private affairs. While these cases have varied with respect to their outcomes, they are consistent in the sense that the school board was concerned that the teacher was involved in a socially unacceptable relationship. Associational claims have been brought when teachers have been dismissed for living with someone other than their spouse,66 being pregnant out of wedlock,67 openly proclaiming themselves to be homosexual," and "keeping" members of the opposite sex in their home.69IMAGE FORMULA36

While a school district cannot require a teacher to submit affidavits listing all the people he or she associates with after hours," a school district seemingly has authority to terminate an employee whose associations compete with its interests. For example, a Department of Housing and Urban Development appraiser was disciplined when he managed his wife's slum property in direct contradiction of his employer's mandate." Also, in Shahar v. Bowers," a lesbian employee's freedom of association claim failed against her employer, the Attorney General of Georgia, where the Attorney General asserted that the employment of a lesbian in an office that enforces state law would conflict with defending a law that prohibited homosexual sodomy."

Moreover, school districts should be especially careful when evaluating a teacher's conduct that might be characterized as speech. A statute that gives state officials the authority to terminate a teacher based on "immorality" may run afoul of the First Amendment right to free speech." Could a school district terminate a teacher for marching in a Saturday afternoon gay rights parade around the local court square? A good argument exists that in doing so, the school district would no longer be regulating mere "immoral" conduct, but has crossed the line into regulating speech."

What emerges from these cases is a realization that school authorities do not have unlimited discretion to police the private lives of their teachers. While the school district has a strong interest in protecting the school community, it must recognize that its teachers also have rights that are protected by the Constitution. Because a balancing of interests is required when the government attempts discipline based on a teacher's off-duty conduct, several jurisdictions have proposed a compromise to ensure that both the school board's inquiries are warranted, and the teacher's interests are protected: This is the requirement of nexus.IMAGE FORMULA38

V. AN APPROPRIATE BAR: FINDING THE NEXUS - A COMPROMISE THAT AFFORDS PROTECTION TO INTERESTS OF BOTH SOCIETY AND TEACHER

A. Procedural Due Process and the Need for "Nexus"

Teachers possess an important right under the Constitution - the right to procedural due process under the law. Procedural due process requires that "state action which deprives a person of life, liberty, or property, must have a rational basis-that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as "arbitrary or capricious."' In other words, a school district potentially could violate a teacher's procedural due process rights if its decision to terminate the teacher is "arbitrary" or "marked by whim or caprice rather than reason."

As such, before dismissing a teacher for "immorality" based on conduct occurring outside the classroom, a majority of jurisdictions will require that a 11 nexus" be shown between the conduct in question and the teacher's job. It should be noted that not all jurisdictions have chosen to adopt the "nexus" approach.

B. Not All Jurisdictions Require a "Nexus" be Shown

Not all jurisdictions demand that a "nexus" be shown in connection with dismissing a teacher for "immorality." While these jurisdictions represent the minority, the reasons courts have given in rejecting this requirement illustrate the competing interests between the school district and teacher. Some jurisdictions do not require a nexus to be shown simply because the teacher serves as a role model and is expected to behave in appropriate ways, regardless of where the conduct takes place." In Hainline v. Bond," the court found a teacher dismissed for burglary was put on adequate notice that commission of a crime was prohibited within the term "immorality."" The court may not have seen a need to adopt a nexus requirement in this case, perhaps because the offense was historically one of moral turpitude. It seems that most cases involving criminal convictions, especially felonies, are illustrative of that "universal core" body of conduct that is often labeled immoral. As the court stated, "One of the goals ofeducation is to instill respect for the law, and teachers are expected to serve as role models for their students.""

Other jurisdictions do not require a separate showing of "nexus" because "immorality" is defined in the statute as involving an "act of moral turpitude." These jurisdictions reason that "if a teacher cannot abide by these standards [set out in the law], his or her fitness as a teacher is necessarily called into question."" Still other jurisdictions see no need to adopt a nexus requirement.

Other minority jurisdictions look to the egregiousness of the conduct in question and, if warranted, find the conduct implicitly calls into question a teacher's fitness for the job. In Barringer v. Caldwell County Board of Education, the court reasoned a reasonable public school teacher of "ordinary intelligence" utilizing "common understanding" would have known that approaching a crowded local pool hall armed with a fully loaded shotgun and sidearm, proffering violent intent, would place his job in jeopardy." The court stated a reasonable person should realize that this conduct would likely become known to the teacher's students, thus manifesting approval of violence and vigilantism, inappropriate for a teacher."

C. Requiring a "Nexus"-The Majority Position

However, a majority of jurisdictions require that a nexus exist between the off-duty conduct and a teacher's duties before allowing termination of the teacher based on immorality. A nexus requirement is important for both teacher and school district. For the school district, a showing of nexus increases the likelihood of its prevailing against a teacher's due process claim. For the teacher, the requirement of nexus ensures the teacher will only be dismissed for something truly related to his job, i.e., something for which most people would reasonably expect to be terminated.

In addition, when presented with a case involving First Amendment concerns, a showing of nexus certainly makes clearer any ambiguities that might be present in balancing both the school district and teacher's interests. For example, if a nexus is found, it at least arguably raises a rebuttable presumption that the school district had an interest worth protecting to which a teacher's interest may be required to yield. While it is clear, according to a majority of jurisdictions, that a nexus need only be shown for conduct occurring outside the classroom,89 few courts are explicit in defining nexus or providing instruction on how to establish this important element.

D. Defining Nexus

Although the specific language in the cases varies, most courts require the school district to show some connection between the conduct in question and the teacher's professional duties. "While the school board may legitimately inquire into the character and integrity of its teachers, in reviewing the character of a teacher, a nexus between the teacher's conduct and the workings of the educational system must be demonstrated."' Other courts require a "rational nexus"91 or "sufficient nexus"92 or even a "substantial nexus"93 between the conduct and duties in question. Regardless of the degree of nexus, most courts say that the outside conduct must relate to the teacher's "fitness to teach."'

E. Establishing Nexus-"Fitness to Teach"

After a court finds the teacher's conduct to be sufficiently immoral, those jurisdictions which require a nexus typically focus on how the conduct may affect the teacher's ability to teach. While "fitness to teach" is a broad term, most courts interpret "fitness" to refer to a teacher's ability to maintain discipline in the classroom, the effect the act will have on the teacher's students, and the attitudes of the students' parents. For example, courts have found that a teacher's fitness to teach has been adversely affected for conduct involving possessing or smoking illegal drugs, being charged with a crime such as battery"or sexual abuse, engaging in meretricious relationships,98 or even tampering with school property.'

In Board of Education of Cape Giradeau School District No. 3. v. Thomas," A Missouri court found that a teacher who intentionally shot at her estranged husband's girlfriend had exhibited immoral conduct that rendered her unfit to teach."' While the teacher went inside to talk to her estranged husband, the husband's lover scratched "bitch" on the teacher's car and then proceeded to leave."' When the teacher came out of the house and saw her car, she became enraged, pulled a gun, and fired four shots, one of which hit the lover in the leg."' Although the incident occurred in the summer, the school board convened and dismissed the teacher for immoral conduct.'" At the hearing, the board delivered twenty-seven findings of fact that the teacher was "unfit to teach."" The only testimony presented to establish the nexus was from the junior high principal and a human resources coordinator." Both testified that students and teachers were aware of the conduct and that the conduct would confuse students who are taught that "we are a gun-free, violence-free environment.""' Testimony was also presented that if the teacher were allowed to continue to teach, this would create a difficult situation for other parents and teachers because the teacher's actions contravened school policy and her role as authority figure and role model for the students."' The teacher appealed and argued that no nexus had been presented.

The appeals court upheld the trial court's findings that the teacher was properly terminated and a nexus was properly established between the conduct and her "fitness to teach.""' The court relied on two major factors in determining that the conduct affected the teacher's fitness to teach, namely the age and maturity of the teacher's students, and the likelihood and degree of an adverse effect on the students and other teachers."' The court found that the teacher's adolescent students were very impressionable, that the use of violence by the teacher to solve personal problems was likely to have an adverse effect on her students, and that the teacher's commission of a crime would adversely effect her relationship with other faculty and parents because her conduct was a breach of both policy and law, affecting her position as a role model and authority figure."' After recognizing that teachers are held to a higher standard in our society, the court upheld the lower court's decision that the teacher was properly terminated."'

There are, however, cases in which a teacher's conduct, although faulted, did not result in the teacher being terminated. In each case, the deficiencies were found to have had no effect on the teacher's "fitness to teach."I" Thus, it can be seen that the outcome is highly dependent on the specific facts of each case. Nonetheless, requiring a showing of proper nexus between the conduct and the teacher's fitness to teach makes vague statutes based on mere "immorality" fundamentally more fair.

First, the requirement of nexus brings into focus the previously unstated rule of "community standards." For example, in a liberal, more tolerant community where homosexual lifestyles would be more accepted, a teacher may have a better argument that her lifestyle would not adversely affect her ability to teach. Conversely, a homosexual teacher's ability to teach in a Christian community would more likely be hampered. Also, certain acts, such as the commission of a felony, may be labeled as per se immoral because they always affect a teacher's fitness to teach, regardless of the views of the community applying the statute.

Second, a nexus requirement may affect the balancing of interests that must take place when First Amendment rights are at issue. Whether it be free speech, association, or privacy claims, if a school district can adequately demonstrate that a teacher's conduct would affect his or her ability to teach, at least a rebuttable presumption is raised that the school's interest may be superior to any First Amendment rights claimed by the teacher. For example, a teacher who is terminated for "immorality" based on her conduct of marching in a gay rights demonstration may have a claim against the school district if she can prove that what in fact the school district is doing is attempting to regulate her off-campus speech. Accordingly, it seems the teacher should prevail, unless the school district can sufficiently demonstrate that her speech affects her overall "fitness to teach." I" However, the level of "fitness to teach" showing should be greater than the one the court accepted in Sullivan v. Meade County Independent School District No. 101. In Sullivan, the court upheld the discharge of a teacher who lived with her boyfriend in a trailer park located in a rural school district community."' The court held that the teacher's conduct affected her fitness to teach in that it occurred on school property (the mobile home was provided by the school district) and a majority of students and teachers, who also lived in the same trailer park, were aware of the conduct."' Arguably, the mere fact that students lived in the area and were aware of the conduct should not have given the school district the right to police the teacher's choice of companion.I" The fact that school authorities may not approve of every aspect of a teacher's life does not give them an unfettered right to intrude so as to correct it.

VII. CONCLUSION

Inquiries by school authorities into a teacher's conduct away from the school setting should be limited to conduct that has a sufficient connection with the school's interest. Concerns arise when school authorities rely on vague "immorality" based statutes to dismiss a teacher for conduct outside the school setting. By using these statutes, school authorities may be inviting constitutional challenges based on vagueness, as well as claims based on the right to privacy, association, and speech.

An increasingly large number of jurisdictions have adopted a nexus requirement to alleviate some of these concerns. The nexus requirement generally requires that the school district sufficiently demonstrate a connection between the conduct in question and the teacher's fitness to teach. It seems that this approach is fundamentally more fair. By requiring a sufficient showing that the teacher's fitness to teach has been hampered, both the interests of school authorities and teachers will have to be addressed. In addition, the requirement of nexus brings into focus the previously unstated rule of "community standards" and forces the district to articulate which standard is offended and how that offense relates to the education of its children.

Perhaps the solution to these issues lies with the individual school districts and boards educating their teachers as to what specific conduct is required of them. Or perhaps the solution lies with the various state legislatures, in passing laws which more clearly define the scope of prohibited conduct, or by establishing minimal levels of positive qualifications that teachers must possess before being allowed to teach. The laws that allow teachers to be dismissed for "immorality" are simply outdated, and pose significant difficulties when applied to today's more complex world. The need for well-educated, "moral" teachers, however, is not outdated and will likely always be present.

AUTHOR_AFFILIATION

JASON R. FULMER*

*J.D., University of Arkansas School of Law 2001. Mr. Fulmer is an associate with the law firm of Gardere, Wynne, Sewell, LLP in Dallas, Texas.

4 comments:

Anonymous
said...

Sheila Devine, public school elementary school teacher had an open affair with a married man, whom she knew and understood was married with three young children. This family lived in the same community as the school she taught in. She carried on this affair in the public in a reckless and offensive manner.

What advice should I give to a grandparent who has told me (in confidence) thata male teacher during the school year(1) has had her 8 year granddaughter sit on his knee during class(2) shared food from her lunch box(3) and (a) given his e-mail address to her granddaughter (8 years) (b) at the end of the school year when he will not be teaching her in the following year and (c) has not asked her parents permission to communicate with the girl? (4) (a) Is it of a concern? (b) Should I interfere and let the school know? or (c) or just ignore what I have been told?

I would suggest reporting what you know, if you believe that this really happened, to:The Special Commissioner of Investigation Police DepartmentAddress: 20, 80 Maiden Ln, New York, NY 10038Phone:(212) 510-1400

I would suggest reporting what you know, if you believe that this really happened, to:The Special Commissioner of Investigation Police DepartmentAddress: 80 Maiden Ln, New York, NY 10038Phone:(212) 510-1400

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I assist anyone who needs help, so email me your problem to start the ball rolling! I am a teacher/parent advocate, and I am the editor/writer for this blog and the website parentadvocates.org. I also write about court corruption on my blog "NYC Court Corruption". I am interested in random injustice and the criminalizing of innocent people. If you want to chat you may email me at: betsy.combier@gmail.com and I'm on twitter and have a facebook page too. I'm not an attorney and do not give legal advice.

If you want to talk with me about your 3020-a charges, I consult and go over your case without charge. No fee.

And, in response to the lies of certain individuals who resent my work, the truth is that all conversations are confidential and I do not tape secretly.

My Thoughts and Raison d'etre

This blog is about the denial of Constitutional rights by the Mayor, the New York City Department of Education and the Chancellor, New York State and Federal Courts, New York State legislature, and the United Federation of Teachers (UFT), as well as PACs and all parties participating in the business of public school education in New York City, to harm and in neglect of parents, children, and staff of public schools in the five boroughs. These thoughts are not simply mindless conclusions reached out of thin air, but a result of 14 years of research into the NYC DOE and the Courts as a reporter and paralegal.
I am an advocate of Unions and union rights, public schools and charters, and learning online as well as outside of the classroom. I cannot and do not support anyone, whether they be union management, government, private members of the political or legal system, or simply retired teachers with an agenda, if he or she tramples, discards, or rebuffs anyone's individual civil rights. As a reporter, journalist, advocate, researcher and paralegal, I have created this blog to inform the public about my experience working for the UFT and being the parent of four daughters who went through the public school system in NYC, as well as examine issues that flow from the massive denial of due process rights that I saw and have documented. The two most important points you should remember: first, everyone at the New York City Board/Department of Education and all Union bigs are motivated by power and money, and looking good. If anyone dares to blow the whistle on these racketeers, retaliation follows, so be a strategist; second, I am not an Attorney and nothing I write or say is legal advice, simply my thoughts. Take 'em or leave 'em.
Betsy Combier, Editor
NYC Rubber Room Reporter
http://nycrubberroomreporter.blogspot.com
New York Court Corruption
http://newyorkcourtcorruption.blogspot.com
Parentadvocates.org
http://www.parentadvocates.org
Facebook: http://www.facebook.com/betsy.combier
Twitter: http://twitter.com/BetsyCombier
The NYC Public Voice
http://nycpublicvoice.blogspot.com/betsy.combier@gmail.com
Lawline July 27, 2011
http://www.teachem.com/lawlinetv/learn/lawline-tv-teachers-unions-the-last-in-first-out-rule/

Principal Anne Seifullah changes her image so that she can keep her job amidst sexting and trysts in the school, Robert Wagner Secondary Sch...

Testimonial from an Exonerated Teacher

Dear Betsy,I am forever indebted to you, Betsy, for your expert counsel throughout a horrific ordeal. You worked tirelessly to prove my innocence in a 3020a proceeding that was instigated by a corrupt school district and fueled by lies. My proceedings ended with my complete exoneration, my record expunged and my immediate return to the classroom. We didn't even need to file an appeal! Thank you, Betsy. I am now eligible to retire and enjoy the benefits you helped me to protect. God bless you and the work you do protecting the innocent.Sincerely,Maria Gargano

Betsy Combier is the Best!

Google + Rubber Room Community

FAITH

When we walk to the edge of all the light we have and take the step into the darkness of the unknown, we must believe that one of two things will happen. There will be something solid for us to stand on or we will be taught to fly. Patrick Overton

Truth Seeks Light - Lies Seek Shadows

Twins Jill Danger (left) and Betsy Combier(right)

sayin like it is

Actions Have Consequences

Writing as Music

Rubber Room teachers wish me a happy birthday (2006)

"Educating the mind without educating the heart is no education at all."

Rubber Room Satire

The Labor Movement

The Teaching Equation

We Can Work Out Our Differences

The E-Accountability Foundation

The E-Accountability Foundation brings you this blog which highlights issues that have or should be read by people interested in civil rights, and accountability. The E-Accountability Foundation is a 501(C)3 organization that holds people accountable for their actions online and, through the internet, seeks to bring justice to anyone who has been harmed without reason. We give the'A for Accountability' Awardto those who are willing to blow the whistle on unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status.

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Performance Management - Office of Labor Relations

From Betsy Combier

The NYC Office of Labor Relations, with the support of the UFT, has issued to principals a document called"Performance Management" on how to get rid of an incompetent teacher. Who is an "incompetent teacher"? Anyone the NYC Department of Education wants to remove from the system because he/she is too senior (makes too much money), is disabled (and therefore cannot be deemed factory-perfect) and/or is other impaired (is a whistleblower, cannot be intimidated, is ethnically challenged - not the 'right' race, etc).

Candace R. McLaren

Director, Office of Special Investigations (OSI)

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Polo Colon

"Rubber Room"

(1) a space where a worker subject to a disciplinary hearing or other administrative action waits and does no work; generally, a place or personal mind-set of isolation.(2) a literal reference to a padded cell, which is, according to the New Oxford American Dictionary, “a room in a psychiatric hospital with padded walls to prevent violent patients from injuring themselves.”from Double-Tongued Dictionary http://www.doubletongued.org/index.php/dictionary/rubber_room/

"Rubberization"

The word "rubberization" is a new word that is used to describe the process of assigning and paying people to sit and do nothing in a drab room away from their place of employment while their employers make up charges that allege sexual or corporal misconduct without any facts upon which to base the allegation on.

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Theresa Europe, NYC BOE ATU Director

Robin Greenfield

Deputy Counsel to the NYC DOE

UFT Pres. Mike Mulgrew and NYC Mayor Mike Bloomberg

UFT umbrella pals

New York State Supreme Court Judge Manuel Mendez

ATR CONNECT

Tenured Teachers who are found to be guilty of misconduct or incompetency at 3020-a but are not terminated, who have blown the whistle on the misconduct of politically favored NYC Department of Education employees, and/or who are simply disliked for any reason can suddenly find themselves in the ATR ("Absent Teacher Reserve") pool - employees without rights or voices, and without chapter leader union representation.

This new group of people are the "new" rubber roomers without representation at the UFT and denied the protection of the Collective Bargaining Agreement, because basically they have been pushed out of their jobs unfairly and under color of law by Mayor Bloomberg and the Chief Executives of the Department of Education who call themselves "Chancellors", "Network Leaders", "Superintendents", etc., consistently without any facts or evidence to support the false claims.

A group of teachers who are, or were, made into ATRs, ATR Polo Colon, and I, Betsy Combier, an advocate for transparency and labor/employment rights, have joined together to expose the denial of due process, civil and human rights by chiefs of the NYC Department of Education (NYC DOE), certain arbitrators at 3020-a, leaders of the United Federation of Teachers (UFT), the "investigators" -agents who work for the Special Commissioner of Investigation (SCI), Office of Special Investigation (OSI), and the Office of Equal Opportunity (OEO) - and the Attorneys who work for the New York United Teachers (NYSUT), and the New York Law Department (Corporation Counsel).

In order to protect the safety of those who join this group to promote an end to the "Rubberization" process described on this blog since 2007, names of those who tell their stories will, for now, remain anonymous if the person so desires, and Polo and I will be the gatekeepers. So if you are an ATR, or know a story involving an ATR or someone re-assigned or about to go into a 3020-a, please use the email address advocatz77@gmail.com and give us your contact information. We will protect your anonymity and hold onto your privacy.

Betsy Combier and Polo Colon, Editors

FAITH When we walk to the edge of all the light we have and take the step into the darkness of the unknown, we must believe that one of two things will happen. There will be something solid for us to stand on or we will be taught to fly.

Patrick Overton

We have forty million reasons for failure but not a single excuse.Rudyard Kipling (1865-1936)

The Re-Assignment Overview by Betsy Combier

The New York City Board of Education decided in 2002 to rid the public school system of staff who interfered with their takeover and control. The criteria for a "good teacher" is now, more often than not, a "silent teacher", a person who never asks questions, is younger than 40, is making a salary below $50,000, does not care about kids and what they learn, or whether or not money (books, supplies, equipment, etc) is missing. When a teacher or staff member of a school dares to do the right thing and speaks out about wrong-doing - this person is often called a "whistleblower" or "flamethrower" - or, simply is not liked for any reason by the Principal/NYC personnel, suddenly he/she is accused of something by somebody ("given a label of "A", "B", "C", and so on) and whisked away to a drab room called a temporary re-assignment center or "rubber room". Members of the offices of the Special Commissioner of Investigation or the Office of Special Investigations then start work on building a case against the person to justify their being thrown in prison, declared "unfit for duty", or, as Mr. Joel Klein has said, characterized as "guilty of sexual activities and corporal punishment" against the children of New York City.The stories of the people I have met who sit every day in the 8 rubber rooms of NYC prove to me that Mr. Klein is very wrong about his assessment, and this blog is created to prove it to you.

Puppy Snooze

US Department of Labor ELAWS

Aeri Pang, Gotcha Squad Attorney

Attorney Pang, red dress, now chief Attorney For New York State Supreme Court Judge Cynthia Kern

New York State Supreme Court Judge Cynthia Kern

NYC EdStats You Can Use

$12.5 billion: Annual New York City Department of Education (DOE) budget (2002)

$21 billion: Annual New York City DOE budget (2009)
1,719: Number officials employed by the DOE central administration in June 2002

2,442: Number of officials employed by the central administration as of November 2008

2: Number of DOE officials earning more than $180,000 per year in 2004.

22: Number of DOE officials earning more than $180,000 per year in 2007.

5: Number of DOE public relations staffers in 2003.

23: Number of DOE public relations staffers in 2008.

944: Number of contracts approved by DOE in 2008, at a total cost of $1.9 billion.

20: Percentage of contracts that exceeded estimated cost by at least 25 percent.

$67.5 million: Annual budget of Project Arts, a decade-old program that was the sole source of dedicated funding for arts education. It was eliminated in 2007.

86: Percentage of principals who said in a 2008 poll that they were unable to provide a quality education because of excessive class sizes in their schools.

100,000: Number of seats DOE plans to provide for charter school students by 2012.

25,000: Number of seats DOE plans to build under 2010 to 2014 capital plan.

66,895: Number of K-3 school-children in classes of 25 or more during the 2008-09 school year.

15,440: Average number of seats per year built during the last six years of the Rudolph Giuliani administration.

10,895: Average number of seats per year built during the first six years of the Bloomberg administration.

27.2: Percentage of newly hired teachers in 2001-02 who were Black.

14.1: Percentage of newly hired teachers in 2006-07 who were Black.

53.3: Percentage of newly hired teachers in 2001-02 who were white.

65.5: Percentage of newly hired teachers in 2006-07 who were white.

76: Percentage of white and Asian students who performed better than the average Black and Latino students in 8th grade English Language Arts (ELA) in 2003.

75: Percentage of white and Asian students who performed better than the average Black and Hispanic students in 8th grade ELA in 2008.

77: Percentage of white and Asian students who performed better than the average Black and Hispanic 8th graders in math in 2003.

81: Percentage of white and Asian students who performed better than the average Black and Hispanic 8th graders in math in 2008.

54: Percentage of New York City public school parents who disapproved of Mayor Bloomberg’s handling of education, according to a March 2009 Quinnipiac poll.

Sources: New York City Council, New York City Comptroller’s Office, New York Daily News, New York Post, Eduwonkette, Quinnipiac Institute, Black Educator, Class Size Matters, New York City Schools Under Bloomberg and Klein.

Betsy Combier and NYSUT lawyer Chris Callagy

The New York City Whistle Award

NYC Whistlers, Winners of the NYC Whistle Award

...are those individuals in New York City who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. Whistlers ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up.

These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions.

Congratulations, and keep up the good work!

Betsy Combier

Special Commissioner of Investigation Richard Condon

Condon "qualified" for his current post after Bloomberg lowered standards; who will leash him?

A great teacher

After being interviewed by the school administration, the prospective teacher said: 'Let me see if I've got this right.

'You want me to go into that room with all those kids, correct their disruptive behavior, observe them for signs of abuse, monitor their dress habits, censor their T-shirt messages, and instill in them a love for learning.

'You want me to check their backpacks for weapons, wage war on drugs and sexually transmitted diseases, and raise their sense of self esteem and personal pride.

'You want me to teach them patriotism and good citizenship, sportsmanship and fair play, and how to register to vote, balance a checkbook, and apply for a job 'You want me to check their heads for lice, recognize signs of antisocial behavior, and make sure that they all pass the final exams.

'You also want me to provide them with an equal education regardless of their handicaps, and communicate regularly with their parents in English, Spanish or any other language, by letter, telephone, newsletter, and report card.

'You want me to do all this with a piece of chalk, a blackboard, a bulletinboard, a few books, a big smile, and a starting salary that qualifies me for food stamps. 'You want me to do all this and then you tell me. . . I CAN'T PRAY?

NYC Police Commissioner Ray Kelly

Joel Klein's famous statement about rubber room teachers and staff

On November 27, 2006, temporarily re-assigned teacher (TRT) Polo Colon asked Joel Klein, the "pretend" Chancellor of the NYC public school system, if he had voted to terminate teachers at the secret Executive Session held just before the public meeting of the Panel For Educational Policy.Mr. Klein answered,"We did not vote to terminate you. We did vote to terminate a teacher in executive Session...in fact, we voted to terminate two teachers. It's perfectly consistent with the law.Many teachers have been charged with sexual activities and some are charged with corporal punishment...I have no interest in removing people who are qualified to teach, I can assure you, because I dont get any return...and in fact, I have complained publicly about how long this process drags out. But our first concern will always be and, as a former lawyer and somebody who clerked on the United States Supreme Court I will tell you, there is no violation of due process whatsoever..."- extracted from the audiotape of the PEP meeting bought by Betsy Combier after filing a FOIL request to the NYC BOE

November 26, 2007 Candelight Vigil

The School Law Blog

A Review of Battling Corruption in America's Public Schools by Betsy Combier

Lydia Segal's book puts the NYC, Chicago, and California Departments of Education on notice....we who have read this book know more about how the system is not there for our kids than "you" want us to know. Lydia Segal's book Battling Corruption in America's Public Schools changes the public school reform movement forever. We can no longer assume that more money allocated to our schools will "fix" the disaster that is our public school system.

Lydia Segal draws on her 10 years of undercover investigation and research in over five urban school districts, including the three largest, New York City, Los Angeles, and Chicago, and the two most decentralized, Houston and Edmonton, Canada, to provide, in her new book Battling Corruption in America's Public Schools, the details of the corruption, theft, fraud, and patronage that has overrun our public school establishment for several decades. There is no question that anyone who is interested in school reform -this means anyone who pays taxes, is a parent or guardian of a child attending school and/or who works toward a goal of establishing an education system that puts children first - must read this book. Ms. Segal's research and information on the education establishment's 'dark' side outrages the reader, and incites us to demand change. Her book therefore, is much more than a book, it is a call to action. We cannot be bystanders any longer to the systemic abuse she so vividly describes, and we will never be able to listen in the same way ever again to school Principals, Superintendents, school custodians or district board members as they request more money "to help the children."

The book's detailed reports on the corruption and crime in our public schools, supported by 52 pages of interview notes, references and specific examples, provide irrefutable evidence that the current failures of our nation's public schools are not due to the lack of money but the impossibility of getting the money to the children who need it and for whom the money is allocated in the first place. Recent statistics show that students of all ages are not learning what they need to know, schools are overcome with violence, teachers are demoralized, and yet billions of dollars are literally shovelled into the system every year. The New York City school system receives more than $16 billion every year; Los Angeles, $7 billion; and Chicago, $3.6 billion. Where does this money go? We have all asked this question as we have walked through school hallways dodging the paint falling off the walls and ceilings, watching our children sitting on broken chairs, using bathrooms without running water or toilet paper, and struggling to achieve their personal best without the services and resources they are supposed to have. Battling Corruption in America's Public Schools is the first book ever to systematically examine school waste and corruption and how to fight it. Ms. Segal, an undercover school investigator turned law professor, documents where the money goes, how waste and fraud embedded in the operation of large school bureaucracies siphon money from classrooms, distort educational priorities, block initiatives, and what we can do to bring badly-needed change. She describes in detail how only a small percentage of the money allocated to students in our public schools actually gets used by them due to corruption and waste, and how city school systems scoring lowest on standardized tests tend to have the biggest criminal records and most payroll padding. Coding problems, the procurement process, compartmentalization and opacity of information leave administrators with only two options: good corruption (which ultimately helps the kids) and bad corruption (which never helps anyone but the perpetrator and his/her allies and accomplices). Indeed, the system fights those who try the good corruption route.

Ms. Segal argues that the problem is not usually bad people, but a bad system that focuses on process at the expense of results. Decades of rules and regulations along with layers of top-down supervision make it so hard to do business with school systems that they encourage the very fraud and waste they were designed to curb. She tells us about how the "godfathers" and "godmothers" (the school board members) obtain jobs for their "pieces" in order to protect the systemic waste and fraud from being dismantled or exposed. Fortunately, she writes, there are good people involved in the corruption as well who must violate the rules in order to get their jobs done. Nonetheless, absurdities abound: school systems following rules to save every penny spend thousands of dollars hunting down checks as small as $25; it takes so long to pay vendors for their work that some have to bribe school officials to move their checks along; caring Principals who want to fix leaky toilets may have to pay workers under the table because submitting a work order through the central office could, and often does, take years. Meanwhile, those who pilfer from classrooms get away with it because the pyramidal structure of large districts makes schools inherently difficult to oversee. What makes Battling Corruption in America's Public Schools a must-read is not only the fascinating - and depressing - details of the systemic wrong-doing but also Ms. Segal's suggestions for reform, based on the proven track records of school systems across North America that have successfully reduced waste and fraud and have pushed more resources into schools.

The pathology of the corruption suggests the remedy, Ms. Segal says, which is decentralization of power into the schools and the hands of the Principals. Distilling what successful school systems have done, Segal advocates new forms of oversight that do not clog up school systems and recommends giving principals more discretion over their school budgets as well as holding them accountable for job performance. She argues for "autonomy in exchange for performance accountability" as part of a bold, far-reaching plan for reclaiming our schools. Her conclusion is logical and convincing. Everyone who reads this book will find his or her perception of public school education changed forever. We cannot accept any longer that a generation of children has been abused by a system that is so full of greed and corruption without screaming "stop!" and "Your game is up!"

Segal reveals how systemic waste and fraud siphon millions of dollars from urban classrooms and shows how money is lost in systems that focus on process rather than on results, as well as how regulations established to curb waste and fraud provide perverse incentives for new forms of both. Anyone who is interested in school reform--this means anyone who pays taxes, is a parent or guardian of a child attending school, and/or who works toward a goal of establishing an education system that puts children first--must read this book. --

Lydia G. Segal is Associate Professor of Criminal Law and Public Administration at John Jay College of Criminal Justice, City University of New York.

The NYC BOE FAMIS Online Tour

The FAMIS Portal Online Tour provides an overview and demonstration of the FAMIS Portal. Computer speakers or headphones are recommended. Choose an item of interest below, or click on the Introduction to proceed through all of the modules in sequence.

About Me

Reporter, paralegal, advocate,I will investigate, search on the internet and in all data bases for information that will help a person in need of resolution to a problem.I believe in substantive and procedural due process for all individuals, groups and organizations and trademarked the term "e-accountability" to describe the purpose of my work. I am the parent of four daughters.

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